Advice and Consent Powers

There are a number of powers in the US Constitution that are exclusively granted to the two different houses of Congress. These include:

House of Rep

House of Representatives

  • Can begin impeachment proceedings against the President of the United States.
  • Elects the President if the Electoral College is tied or no candidates reach a majority.
  • Power to introduce legislation that deals with revenue and taxes

 

 

US Senate

Senate

  • Tries impeachment proceedings against the President of the United States.
  • Elects the Vice-President of the United States if the Electoral College is tied or no candidates reach a majority.
  • Reviews and ratifies Presidential Appointments.
  • Ratifies International Treaties by a two-thirds majority.

The last two of the exclusive powers given to the Senate are known as ‘advice and consent’ powers. The name of these powers come directly from the Constitution as in Article II, Section II it says:

“He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”

There are two key areas in which the advice and consent powers are particularly important.

  1. Ratifying International Treaties

The President of the United States is the Chief Diplomat of the United States. In this role, he has enormous power. However, the Founding Fathers saw fit to place a clear check on this power. Any international treaty agreed by the Executive Branch must be ratified by a two-thirds majority of Congress. Throughout US History a number of international treaties have not been ratified by the US Senate:

1997 – The Kyoto Protocol: The Kyoto Agreement aimed to reduce Carbon emissions and was signed by President Clinton. However, it never came into force in the United States because the US Senate refused to even hold hearings on ratifying the treaty, believing that forcing the reduction of carbon emissions would home the US economy.

1996 – The Comprehensive Test Ban Treaty: In 1996 the United Nations agreed to a ban on all nuclear explosions. Although Bill Clinton’s government signed the agreement, the US Senate refused to ratify it.

1919 – The Treaty of Versailles: After the First World War the victorious powers met in Versailles to agree a Peace Treaty and to set up a new international organisation called the League of Nations. However, despite the US President Woodrow Wilson being a key factor in the League of Nations being set up, the US Senate voted by 39-55 for ratifying the Treaty, meaning it could not be ratified. This was the start of a period of isolationism in America which ended when America joined World War Two.

Versailles

The US Senate twice refused to ratify the Treaty of Versailles

There are two Obama era international agreements that the Senate have not ratified, and that Donald Trump is seemingly opposed to:

The Paris Agreement (2016) – The Paris Climate Change Agreement has been signed by 195 countries, including the United States. However, Donald J. Trump vowed not to support it and it is unlikely to be ratified by a Republican-Controlled Senate.

The Trans-Pacific Partnership (2016) – The Trans-Pacific Partnership is a trade treaty that aimed to reduce tariffs between 12 nations that bordered the Pacific. In the 2016 Presidential Campaign, Democratic Candidate Hillary Clinton was a support of deal, but Donald J. Trump said it would harm US manufacturing industries and, again, is unlikely to be ratified by a Republican Senate.

  1. Ratifying Presidential Appointments (Cabinet and Sub-Cabinet)

The President of the United States is head of the Executive Branch of Government. In this role, he must appoint thousands of people to roles within the Government. Around 1,400 of these are ‘Senate Confirmable’, meaning that the Senate must agree to these appointments. The most notable of these executive appointments that need confirmation are the Cabinet. Normally, Cabinet Nominees are ratified. This is because they nominees are already vetted by the White House and anyone who is likely to be challenged too much will not be put forward. However, Donald Trump was brave with some of his cabinet nominees last year. One candidate, Betsy DeVos, only became Secretary of Education by 51-50.

Betsy.jpg

Education Secretary Betsy De Vos was only confirmed by a Vice-Presidential Tie-Breaking Vote

This meant that Vice-President, Mike Pence, had to cast a tie-breaking vote. This is in fact the only time that a President has cast a tie-breaking vote for a Presidential confirmation procedure.

Few candidates have failed to be ratified by the Senate. The last time that a Cabinet Appointment was blocked by Senate Ratification was in 1989 when John Tower failed to be confirmed as George H. W Bush’s Secretary of Defence.

 

 

 

 

  • Ratifying Presidential Appointments to the Judiciary

Another area in which the Senate has powers of advice and consent is that they must ratify Presidential nominations to the Judiciary. It is the job of the President to nominate judges to sit on Federal Courts and, most importantly, the Supreme Court. Appointing a Judge to the Supreme Court is one of the most important tasks that a President has and can be one of the biggest long-term impacts that he has on the country. As in the case of Cabinet Nominees, the President is careful to vet candidates so that they are not rejected by the Senate. However, this is no guarantee that they will be appointed. In 2016 President Obama nominated an extremely well qualified federal judge to replace the recently diseased Antonin Scalia on the Supreme Court, his name was Merrick Garland. However, the Republican dominated Senate refused to even hold hearings on Garland because they believed that Obama should not be appoint a Supreme Court judge so late in his term. Instead, upon becoming President, Trump nominated Neil Gorsuch to sit on the Supreme Court and his nomination was confirmed by 54-45.

Administration of the Constitutional Oath

Neil Gorsuch became the latest Associate Justice of the Supreme Court on April 8th 2017

Historically, few Supreme Court justices have been rejected by the Senate. However, in 1987 President Ronald Reagan faced a difficult time appoint a Supreme Court Justice. His first choice, Robert Bork, was rejected by 58-42, with many Senators concerned about his strong decentralist position on constitutional issues. After Bork’s rejection, his second choice was Douglas Ginsburg. However, Ginsburg withdrew from consideration after newspaper investigations suggested he has smoked marijuana whilst a university lecturer. Eventually, Reagan nominated Anthony Kennedy who was confirmed by the Senate by 97-0. He still sits on the bench today.

 

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